Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000266

Original file (MD1000266.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091020

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20020116 - 20020811     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020812     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070829      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 43
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SSDR

Periods of UA :

Time Lost (per DD 214): 20040224-200040313 ( 21 D ays , CCU )

NJP:

- 20040223 :      Article (Violation of a lawful order or regulation) , 2 specifications
         Specification 1: Failing to sign out in the Liberty Log Book
         Specification 2: Willfully disobey MCBJO P11000.2 and GrO 11000.5 by failing to sign his non-military guests with the Duty NCO
         Specification 3: Willfully disobey MCBJO P11000.2 and GrO 11000.5 by having non-military guests of the opposite sex in his quarters
         Awarded : CCU Susp ended:

- 20050621 :      Article (Being belligerent and uncooperative to a superior commissioned officer when being questioned in regard to his erratic driving and excessive speed )
         Article (Operating his privately owned vehicle at over 100 miles per hour, swerving in and out of traffic to include HOV lan e and highway shoulder)
         Article 107 (False official statement)
         Article 134 (False o r unauthorized pass offense ; by altering his identification card)
         Awarded : ORAL Susp ended:

SCM:

SPCM:

- 20060727 :       Art icle (Drugs - marijuana), 5 specifications
         Sentence : FOR 90 DAYS (20060727-20060914, 50 DAYS)

CC:

Retention Warning Counseling :

- 20040223 :       For lack of judgment which resulted in NJP held on 20040223. Specifically, on or about 20040213 you did violated general regulations by (1) willfully failing to sign out of the Liberty Log Book for JRC Barracks per MARCORBASESJAPANO/ For 1050.5 Liberty Buddy Order, (2) failing to sign in your non-military guests with the Duty NCO per MCBJO P11000.2 and GrO 11000.5, and (3) by having non-military guest s of the opposite sex in your quarters disobeying. This complete lack of judgment brings to question your professional competency as a Marine and your commitment to remain in the Marine Corps.

- 20060303 :       For my illegal drug use (marijuana usage identified through urinalysis confirmed by Navy Drug Lab San Diego 20060221 with a THC level of 224 ng.)

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:
         Health/Medical Records:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       Nondecisional issues: Applicant seeks upgrade of characterization of service at discharge in order to be eligible for Montgomery GI Bill educational benefits and Department of Veteran s Affairs medical benefits.

2.       Decisional issues : Applicant contends that his combat service resulted in Post - Traumatic Stress Disorder (PTSD ), which further led to self-medication treatment with illegal drugs and ultimately, discharge. Applicant contends that he was diagnosed in service with PTSD.

Decision

Date: 20 10 1220          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant's request for clemency, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant’s initial entry into the Marine Corps included a Recruiting Station, Commanding Officer waiver for pre-service use of marijuana. Additionally, the Applicant signed the Marine Corps Policy Concerning Illegal Use of Drugs on 08 January 2002, acknowledging that he was fully aware of the Marine Corps’ policy of zero tolerance for drug abuse. He acknowledged the consequences of violation of that policy in writing, prior to entry.

The Applicant’s record of service is marred with two 6105 retention-counseling warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : specifically,

•         Article 89 (Disrespect toward a superior commissioned officer),
•         Article 92 (Failure to obey order or regulation – 4 individual specifications),
•         Article 107 (False official statement), and
•         Article 134 (False or unauthorized pass offense) .

Furthermore, the Applicant’s service record reflects a conviction by Special Court-Martial for violations of the UCMJ , specifically, violation of Article 112a ( Wrongful use , possession, etc of controlled substances – 5 separate specifications of wrongful use of marijuana as confirmed by naval drug lab urinalysis testing ) . Violation of Article 112a is an offense requiring mandatory processing for separation , regardless of time in service or grade, and usually result s in , a t a minimum, administrative separation with an unfavorable characterization of discharge. Based on the requirement to maintain good order and discipline in the service, Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. In this specific case, the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient , non-punitive punishment and administrative discharge process.

The Applicant established a pre-trial agreement with his command; he pled guilty to the specifications as charged at a Special Court-Martial, was found guilty in a trial by judge alone, and was adjudged a sentence of a Bad Conduct Discharge, confinement for 90 days, forfeiture of pay , and reduction in rank to E-1 (Private) . Based on the pre-trial agreement, all confinement in excess of 60 days was suspended for a period of six months and, unless sooner vacated, would be remitted without further action . The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals.

: (Nondecisional) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge from Bad Conduct Discharge to Honorable in order to receive VA educational and medical benefits . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge or, in the case of a court martial, a determination of clemency based on equity of the discharge. There is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant is directed to the Addendum , specifically the paragraph concerning Employment and Educational opportunities.

The NDRB noted that the Applicant’s DD Form 293 included the Applicant’s request for clemency to access health care through the US Department of Veterans Affairs . The NDRB cannot grant clemency based on this i ssue ; h owever, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information . Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

Issue 2: ( Clemency/ Equity) RELIEF NOT WARRANTED . The Applicant contends that his combat service resulted in PTSD, which further led to self-medication treatment with illegal drugs and ultimately, his discharge; as such, the A pplicant contends that his discharge was inequitable. The Applicant contends that he was diagnosed, in service, with PTSD.

In response to the Applicant’s clemency request, relevant and material facts stated in a trial by court-martial are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The Applicant ’ s service record indicates that he is a combat veteran, having served approximately five months in Iraq during Operation IRAQI FREEDOM as a motor transport driver in support of combat sustainment operations. T he Applicant’s documented misconduct includes five confirmed uses of marijuana , several violations of lawful orders and regulations, and disrespect to a superior commissioned officer . Each of these is a serious offense under the UCMJ, punishable by punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s service record also includes injuries resulting from fights, to include a fractured jaw, a broken nose, and a fractured hand. The A pplicant’s record of misconduct beg a n before his deployment to Iraq while stationed in Okinawa.

The Applicant contends his misconduct was resultant from PTSD. The G overnment enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant's claim of a diagnosis of PTSD, nor did the Applicant state this during his trial by S pecial C ourt -M artial. The Applicant’s military medical records indicate a continued treatment for alcohol abuse and symptoms of depression , which first manifested while in Okinawa, Japan, and continued to increase after he executed permanent change of station (PCS) orders to Camp Pendleton. The Applicant’s medical record includes a family history of alcoholism and depression with the Applicant’s admission of continued alcohol use since age 14. When admitted to the Naval Medical Center, Balboa for depression and suicidal ideations related to marital issues and his pending court - martial , the treating physician diagnosed the Applicant with Cannabis dependence with physiological dependence, and having a Borderline Personality Disorder and an Anti-Social D isorder. The Applicant’s record of treatment includes a physician’s note to rule out PTSD as a factor since the Applicant was a combat veteran, but there is no diagnosis of PTSD contained therein.

The Applicant did not pro vide any medical diagnosis by competent medical authority to support his claim. The Applicant may feel that PTSD is the underlying cause of his misconduct, but the record of service clearly reflects continued , willful misconduct that demonstrated that he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s own statements - made under oath during his trial by S pecial C ourt -M artial – include that his marijuana use was without legal authority, without any legal justification, was without excuse , and that he had no reason not to be found guilty.

The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service drug waiver; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service; Service Record Entries; his medical and dental record; the Verbatim transcript of the Special Court-Martial proceeding; and the overall discharge process. Based on the unique circumstances of this case , and the evidence of record, the NDRB determined that there was not sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Based on this review, t he NDRB found t he sentence awarded the Applicant at his court-martial was appropriate for the offenses committed and that clemency was not warranted.

Summary: After a thorough review of the available evidence, t he Board found clemency was not warranted. The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separat ion shall remain COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment and Educational Opportunities, and Post-Service Conduct .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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USMC | DRB | 2010_Marine | MD1000266

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